Rea's v. Wheeler

27 N.J. Eq. 292

Opinion

The Chancellor.

Under the fieri facias issued in this cause for the sale of thfe mortgaged premises, the property was sold to a stranger, for $215, about one-sixth of its value. The complainant was not present, nor-was he represented at the sale. His mortgage was the only encumbrance upon the property, and the amount due upon it exceeds the value of the premises. The mortgagor is insolvent. The complainant resides in a remote part nf the State of Pennsylvania, and he relied upon his. solicitor here, and his counsel in Yew York, to protect his interest in .the sale. The counsel expected to attend, and the solicitor, with good reason, relied on his doing so, and he, therefore, neither attended himself, nor made any provision for purchasing, or for an adjournment. The counsel was prevented by illness from attending the sale. He did not notify the solicitor of his sickness and' consequent inability to be present at the sale, because he supposed the latter would surely attend. 'The complainant prays that the sale may be set aside. Yo ■deed has been delivered by the sheriff. He is entitled to the relief which he seeks. Howell v. Hester, 3 Green’s C. R. 266. The sale will be set aside on terms that the complainant pay to the purchaser his costs of this application, and lawful interest on the purchase money from the time when it was paid to the sheriff